This chapter is about a conflict in property law. I’ve written several times lately about the way ownership constructs identity through individuals’ connections with stuff, especially land and houses. At the same time, the definitional aspect of private property Blackstone discusses here is an owner’s right to dispose of her property as she chooses. This ability to do what you want with your property– including letting go of it– is part of how property law helps create autonomous individuals in charge of their own destiny. But now you see the conflict. Property law constructs individuality by empowering individuals to separate themselves from the very thing that constructs their identity. Somewhat incredibly, this paradox is encapsulated in the English word lawyers use for selling or giving away property: “alienation.”

As Blackstone explains, in law “alienation” means a transfer of property by “any method wherein estates are voluntarily resigned by one man and accepted by another.” II, 287. Ever since I first encountered this usage in law school, I have marveled at the way a piece of legal jargon manages to bring together the two omnipresent critiques of late capitalism – commodification and estrangement. Of course others have noticed this, too. Margaret Radin wrote a great essay on the subject, that I’ll come back to later. Generally, though, lawyers use the word “alienation” with no irony whatsoever, and no hint of its critical potential. And explanations of the development of a right of alienation in the shift from feudal to mercantile society typically ignore the word’s pregnant double meaning. Blackstone is no exception, pronouncing here that “experience hath shewn that property best answers the purposes of civil life, especially in commercial countries, when it’s [sic] transfer and circulation are totally free and unrestrained.” II, 288. It kind of makes you wonder if there was more to feudalism then we are generally led to believe.

Toward the end of her life, my mother’s attachment to her birthplace appeared almost feudal in its timeless stability. “I have a home,” she would say, a bit solemnly, “at 8630 Oak Street in New Orleans.” Relentlessly realistic, I would respond, “Mama, we sold 8630 years ago.” She would be momentarily incredulous – “No! We did”? And she’d shake her head and change the subject. The thirty odd years she spent in Chicago with my father? Gone. Not to mention the ten years in Brooklyn before we moved to Pittsburgh. People who met her at the assisted living home always assumed she had moved directly from the house her father built in New Orleans. To all appearances, no feudal oath of allegiance could have bound her more closely to that place and her life there.

In fact, though, my mother had left that house early on, and in an unusual way. After she died I spoke with her oldest (in all senses) friend, Dottie, who reminded me that as a young woman, my mother had moved out of the house where her father and brothers still lived, and rented an apartment on her own. According to Dottie, this move had shocked the neighborhood. I knew that my mother had lived by herself for a while in a small basement apartment, because she used to tell a story about waking up one morning to find it flooded. “My shoes were floating,” was the punch line. I always pictured a beautiful pair of pumps spinning slowly in a little whirlpool in the middle of a darkened room. Somewhat obtusely, however, I had never considered the social significance of my mother’s decampment from the family “estate” as a young single woman in the 1940s. “Nobody did that,” Dottie said flatly.

My first thought was, why wasn’t that part of the story my mother told me? How come she never mentioned the socially daring aspect of her move? The raised eyebrows of her friends and family? Is it possible she was not aware of them herself? Was she trying to hide that part of her life from me? Or did she keep telling the story of the floating pumps because she wanted me to get to the other meaning on my own, to recognize that she had done something assertive and brave and completely contrary to the image that she always presented to me of this unassuming rather timid person. Oh.

It is rather striking how from generation to generation alienation as commodity keeps producing different forms of alienation as estrangement. And why does that development always seem to involve a coming of age drama? When I was a kid in the 1960s and 1970s, the alienation of the “younger generation” was understood as a conscious choice to drop out of the materialist mainstream. Nowadays I think it is very widely agreed – among people of a certain age — that alienation is a product of the “social media” that constitute the signal structure of our global market economy. The basic thought is that the more swept in you are by the virtual world the more alienated you are from the real time, face to face, body to body relationships that construct the kind of social attachments long thought to nourish individual and collective human development. This time everyone is involved, but the young are thought to be most at risk. How will kids who never learned the basic social art of conversation and eschew “real relationships” for the easier, cheesier pleasures of virtual reality ever develop into full fledged, contributing members of society?

Of course this high-toned individualized alienation is another kind of exclusive property. Fillipo Mirelli is an Italian artist whose project is painting the names of social media sites on buildings and walls in poor neighborhoods around the world. The words MYSPACE and SECOND LIFE in big sloppy colors on corrugated walls in a Phnom Penh slum mark the real detachment of the individuals in that community from the virtual networks that generate the other “first-world-problem” kind of alienation. As Santiago Zabala observes, Mirelli’s work calls out the gap between “advanced technological capitalism and its social detritus.” But there’s another lurking contradiction here. On the one hand Mirelli’s paintings criticize the exclusion of these communities from the global “community” of social networking, and even intervene in it, if only because the painted words are evidence that someone of that other world of virtual connection and real privilege has crossed over, been physically present in that Phnom Penh neighborhood at least long enough to mark the gap. But there is a predictable irony, here, because of course the photographs of the painted buildings that I saw were brought to me via a Google search on my laptop. And thus the same techno capitalist society that Mirelli’s work momentarily disrupts reconstitutes his disruption as another virtual product for my virtual amusement. It’s as if the marginalization of the people whose lives constitute what Zabala casually labels “detritus” has been recycled, reworked into another clever handmade object of aesthetic pleasure, like the South African scrap-tin sculpture that stands on a table in my living room. Here it seems the usual order is reversed: instead of commodification producing estrangement, this is estrangement as commodity.

After my grandfather died, one of my mother’s brothers bought out his siblings’ inherited shares in the house on Oak Street, and lived there until his death about 20 years ago. My mother was his executor and still in full possession of her faculties when she decided to sell the place. At the time it seemed like the only sensible option — no one in the family was then living in New Orleans, and the house was in dreadful shape and in need of major repairs. But, looking back, if it meant that much to her, why not try to work something out?

Whenever I visited my mother at the assisted living home, I would always find a way to work into the conversation the story of how she came to be where she was. So I would say, “well I had a good class today.” And she would ask, “you teach”? And I would say, “oh, yes, I teach at the law school at the University of Pittsburgh. You remember, that is why we all had to move to Pittsburgh! Because I got the job at the University. And that’s why you are living here, now, in this assisted living facility, which is very near the house where Doug and Lincoln and I live. You remember, you were there for dinner a few weeks ago, right? We had shrimp. . . .” And she would nod and “mm hmm” and do a reasonably good job of acting as if she was hearing something that she already knew.

But when I was not there, which of course was most of the time, estrangement would overwhelm enacted orientation. She wanted the staff to call her father, her brothers, someone who could come and pick her up and take her home. They would call me, and I would get on the phone with her and talk for twenty minutes, half and hour, an hour, repeating over and over the facts of her coordinates. I remember one conversation in particular: “Look around you – where are you – in the dining room? That’s where you have meals. Do you see the library across the hall – the fake fireplace with the big hurricane lamps on the mantel? With the yellow couch? You and I were sitting there just the other day.” I must have gone through five or six variations of this tale pointing to different details, trying to spark some familiarity that would orient her to her surroundings, when she stopped me cold. “Jessie,” she said, “I understand what you are saying, and I would really like to believe you, but I just can’t because I have never seen this place before in my life.”

The crazy thing is that at the same time I was spinning these little GPS stories for my mother, I was engaged in a similar struggle to adjust my own internal compass to the external evidence. For all kinds of reasons, our move to Pittsburgh from New York was a no brainer. But it turns out to be harder than you’d think – or then I thought, anyway– to leave the place where you have grown from adolescence to late middle age. I don’t mean hard emotionally. I mean cognitively. I was ready to be sad, but I was unprepared for the possibility that five years after leaving, every time I set foot in New York City I feel as if I am at home. When I walk down a Brooklyn street to, say, get a coffee, or visit a friend, I am completely unable to convince myself that I no longer live there. This is not a cozy feeling. Sometimes I literally walk along mouthing “you don’t live here, you don’t live here.” I would really like to believe myself, but I just can’t.

The question, of course, is what any of this has to do with the property structures Blackstone is expounding in this chapter. Here is an idea. You might say that for my mother and for me, it turned out that on some level our connection with a particular piece of real estate was “inalienable.” The attachment survived despite the monetary transaction and the legal ritual, and indeed despite our own freely willed decision to detach ourselves from the property we once called home.

Margaret Radin points out that, like “alienation,” the word “property” has a double meaning. In legal discourse, “[p]roperty refers to an owned object,” as in, this house is my property, “or to the rights and duties of persons with respect to control of owned objects,” as in, I have a property right to keep you out of my house. Reinterpreting Property 191 (U. of Chicago 1993). But outside law there’s another meaning: “property means an attribute,” something that is part of the identity of a person or thing. As Radin explains, these two kinds of property can be correlated with the two kinds of alienation. Id. at 192-193. Ideally “object property” can be freely alienated on the open market, but selling “attribute property” splits the seller from herself. In my mother’s and my experience, it seems that somewhere along the line one kind of property morphed into another. Somehow object property became attribute property. Which brings me back to the duality I observed at the beginning of this essay, the way our modern property law system constructs and protects individual autonomy both by establishing secure connections to property and by making the ability to freely undo those connections a core property right. At a more systemic level, this contradiction is often framed as two different views of property law itself – as a branch of contract law that enables individuals to shape their relations to one another however they choose and as a complex web of finite possible forms of ownership that connect, divide and secure individuals in recognizable relations to each other.

Now, thinking again about these contradictory or complementary modes of building personhood, it strikes me that I may have misread my mother’s insistence of inseparability from her family home. After all, it seems that early in her life, to an unusual extent, my mother availed herself of the autonomy-creating potential of the free market in real estate. Tired of cooking dinner for your dad and brothers? Want more space to live life on your own terms? Pack a bag, call a cab, sign a lease. Maybe instead of an unbroken spiritual connection, her relentless assertions of attachment to the home she left early and later sold without hesitation actually sprang from conflict and ambivalence. Or maybe this is a modern property structures success story. The story of a woman who self-actualized by using unrestricted alienation to disconnect herself from the restrictive role imposed in her family home while still somehow maintaining a deeply sustaining identification with that place. In the larger scheme, I’m left wondering if the tension in property law between the right to freely transfer property and the ability to build secure connections is dysfunctional or admirably nuanced. Is this apparent contradiction a defect that reveals just how ill suited the law of private property is to the project of human flourishing, or is it part of the way property law reflects and accommodates the unresolvable complexity of our life here on this earth?

Blackstone Weekly · In which I slog through BLACKSTONE'S COMMENTARIES ON THE LAWS OF ENGLAND, perhaps the most famous and least read book about the Anglo-American legal system, and post weekly free-associations on what I've read.